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WORKPLACE SEARCHES AND THE FOURTH AMENDMENT

November 2015

by Brian S. Batterton, Attorney



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©2015 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On October 16, 2015, the Seventh Circuit Court of Appeals decided Gustafson v. Adkins [i], which serves as instructive concerning the law pertaining to workplace searches and qualified immunity for illegal searches.  The relevant facts of Gustafson, taken directly from the case, are as follows:

Renee Gustafson served as a police lieutenant supervisor at the Jesse Brown VA Medical Center in Chicago from September 2007 through April 2009. During this period, William Adkins worked as a detective for the Police and Security Service at the Medical Center. Adkins reported to the Chief of the Police and Security Service, Myron K. Thomas.

At all times relevant to the events in question, the Medical Center did not house a designated female locker room for Police and Security Service personnel. Female officers used an office, commonly referred to as the "old supervisors' office," to change into and out of their work uniforms before and after shifts. The old supervisors' office was also in active use as a supervisors' office. From 2007 through September 2009, four supervisors, two female and two male, had keys to and made use of the old supervisors' office.

Gustafson attests that it was common knowledge that female personnel used the office as a changing room. According to Gustafson, both Adkins and Thomas observed her and another female officer entering the old supervisors' office in street clothes and exiting in uniform (or vice versa), and thus must have known that the room was used to change into and out of clothing.

On or around May 18, 2007, Chief Thomas instructed Adkins to install a hidden surveillance camera in the ceiling of the old supervisors' office. Adkins asked why the camera was being installed and Thomas explained that surveillance was needed to identify supervisors who were sleeping in that office while on duty. Adkins, who was hesitant to install a camera in an area where female supervisors changed their clothes, contacted two sources to inquire about the legality of the instruction: the VA's Office of the Inspector General Investigator and Assistant Chief Cherrylynn Seals. Both sources informed Adkins that the use of a surveillance camera in the old supervisors' office would be illegal. Adkins relayed this information to Chief Thomas and asked whether Thomas had obtained authorization for placement of the camera. Thomas told Adkins "not to worry about that" and to "just install the surveillance camera.

Later in May, Adkins installed covert video surveillance equipment in the ceiling tiles of the old supervisors' office. The camera captured images of female officers dressing and undressing. These images were sent to Chief Thomas's office for viewing.

VA personnel discovered the covert surveillance equipment during a renovation of the VA Medical Center in September 2009. On September 2, 2009, Gustafson learned that the surveillance camera had captured images of her changing her clothes in the old supervisors' office from early 2007 through April 2009.

Gustafson filed suit against defendants Thomas, Adkins, and the United States on August 24, 2011. Her complaint alleged that Thomas and Adkins performed an unconstitutional search. [ii]

The district court denied Thomas’ and Adkins’ motion to dismiss and denied Adkins’ motion for summary judgment based on qualified immunity.  Adkins appealed to the Seventh Circuit Court of Appeals.

Adkins argued that he was entitled to have the suit dismissed based on the Civil Service Reform Act (CSRA) and the Federal Employees Compensation Act (FECA) and argued that he was also entitled to qualified immunity from suit.

The court first noted that the United States Supreme Court, in Schweiker v. Chilicky, held that:

[A] Bivens remedy is not available where the design of a government program indicates that Congress has provided what it considers adequate remedial mechanisms for any constitutional violations that may occur. 487 U.S. 412, 423 (1988). [iii]

It should be noted that a Bivens action is a lawsuit against a federal employee for a federal constitutional or statutory violation, similar to a suit under 42 U.S.C.A. Section 1983, which is used against local government officials for such violations.

The court then addressed each of Adkins’ grounds for appeal.  First, the court considered whether the suit against Adkins should be dismissed because of the CSRA.  Again, if the CSRA provides an appropriate remedy for Gustafson the suit must be dismissed and the plaintiff must proceed with a remedy under that statute.  Regarding the CSRA, the court stated:

The CSRA establishes a "framework for evaluating adverse personnel actions against [federal employees]." United States v. Fausto, 484 U.S. 439, 443 (1988) (alteration in original) (citation and internal quotation marks omitted). The CSRA defines "personnel action" for which a claim under the CSRA may be raised to include: (i) appointment; (ii) promotion; (iii) disciplinary or corrective action; (iv) detail, transfer, or reassignment; (v) reinstatement; (vi) restoration; (vii) reemployment; (viii) performance evaluation; (ix) decision concerning pay, benefits, or awards; (x) decision to order psychiatric testing or examination; (xi) implementation or enforcement of any nondisclosure policy, form, or agreement; and (xii) any other significant change in duties, responsibility, or working conditions. 5 U.S.C. § 2302(a). The CSRA may preempt federal claims that fall within its scope even when its remedy is not perceived as equally effective. Bagola v. Kindt, 131 F.3d 632, 641 (7th Cir. 1997); see also Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir. 1999) ("[T]he CSRA can preclude Bivens actions even where the CSRA does not provide an alternative remedy."). [iv]

The court then stated that Adkins’ action in placing the hidden camera in the office where Gustafson changed clothes did not fall within the statutes meaning of a “personnel action.”  The court stated that Adkins’ conduct was more akin to a warrantless search rather than a personnel action, or disciplinary action.  As such, the district court was correct in not dismissing the suit based on the CSRA.

Next, the court considered whether the Federal Employees Compensation Act (FECA) precluded the suit against Adkins.  The court stated that:

The FECA provides the exclusive remedy against "the United States or an instrumentality thereof" to compensate a federal employee for a work-related "injury," defined as "injury by accident [and] disease proximately caused by the employment." 5 U.S.C. §§ 8101(5), 8102(a), 8116(c). But the statutory scheme recognizes that a federal employee may sue parties other than the United States for work-related injuries and provides for an adjustment of benefits following recovery from such parties. 5 U.S.C. § 8132. Various circuit courts have concluded that the FECA does not bar a federal employee's suit against individual co-employees. [v]

After examining what is covered under this statute, the court held that the illegal installation of surveillance equipment in this case cannot be characterized as an “injury by accident” or a “disease proximately caused by employment, and as such, the suit is not barred by the FECA.

Lastly, the court considered whether Adkins was entitled to qualified immunity for the illegal installation of surveillance equipment which amounted to an unreasonable search under the Fourth Amendment.  When considering whether a government official is entitled to qualified immunity, the court considers (1) whether the official did in fact violate the constitution, and (2), if so, whether the constitutional right was clearly established such that another reasonable officer in the same situation would have known his conduct was unlawful. [vi] 

On appeal, Adkins argued that his conduct did not violate a clearly established right which a reasonable law enforcement officer would have known. 

The court examined the precedent that may clearly establish Adkins’ violation.  The court stated:

Adkins relies primarily on O'Connor v. Ortega, a case that involved a state hospital employee's claim that authorities improperly searched and seized personal items from his office. 480 U.S. 709 (1987). The case centered on whether the employee had a reasonable expectation of privacy in his office, as well as on the appropriate Fourth Amendment standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy. Id. at 711-12. The Court was divided on the outcome. In Shields v. Burge, we interpreted the O'Connor Court's plurality opinion:

[A] work-related "workplace" search is lawful if the search is "reasonable [ ] under all the circumstances." The plurality explained that a search is reasonable if it is "justified at its inception" and if it is "reasonably related in scope to the circumstances" that justified it. A workplace search to investigate work-related misconduct ordinarily is "justified at its inception" if reasonable grounds exist to suspect that the search will turn up evidence of the employee's misconduct. [vii] [emphasis added]

The court then noted that the law is “clearly established” when there is case law from the United States Supreme Court or case law from this federal circuit (the Seventh Circuit) that should put a reasonable officer on notice regarding the lawfulness of his or her conduct.  Regarding whether the law was “clearly established,” the court stated:

In Shields, we articulated the governing legal standard: "The essential principle that [O'Connor] teaches is that an employer's workplace search must be reasonable. Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation." Id. at 1204. Accordingly, the Supreme Court and this Circuit had clearly established the right of employees to be free from unreasonable employer searches by the time Adkins installed the hidden surveillance equipment in 2007.

…However, a broad constitutional test, such as the O'Connor plurality's reasonableness test, is sufficient to clearly establish the law "in an obvious case ... even without a body of relevant case law." Id. Because this is an obvious case that presents a flagrant Fourth Amendment violation, identification of a body of relevant case law is unnecessary.

Therefore, even though O’Connor and Shields set forth broad principals rather than being factually similar to Adkins’ case, the court held that since this was an “obvious case that presented a flagrant Fourth Amendment violation, it is not necessary to identify case law directly on point.  As such, the court of appeals affirmed the denial of qualified immunity

_____________________

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i] No. 15-1055 (7th Cir. Decided October 16, 2015)

[ii] Id. at 2-4

[iii] Id. at 5

[iv] Id. at 6

[v] Id. at 9-10 (See, e.g., Salazar v. Ballesteros, 17 F. App'x 129, 130-31 (4th Cir. 2001) (holding that FECA does not prohibit suits against fellow employees (citing Allman v. Hanley, 302 F.2d 559, 563 (5th Cir. 1962))); Heathcoat v. Potts, 790 F.2d 1540, 1543 (11th Cir. 1986) (following Allman, and noting that FECA "is silent on the matter of co-employee suits"); Bates v. Harp, 573 F.2d 930, 935 (6th Cir. 1978) (holding that "[e]ven though we are not persuaded that co-employee suits are advisable as a matter of policy, in light of the overwhelming authority in support of such suits, absent an explicit statutory bar, we feel constrained to follow the holding of Allman ...."); Davis v. Harrod, 407 F.2d 1280, 1282 n.2 (D.C. Cir. 1969) (noting that under the FECA appellant could sue her co-employee, but not her employer).

[vi] Id. at 11

[vii] Id. at 12-13

 

 
       
 


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